Hate Speech: What Does The Law Say About it?

(Nigeria Moment) – Washington D.C.

Wikipedia Explains Hate Speech and the Law as Follows:
Hate speech is, outside the law, speech that attacks a person or group on the basis of attributes such as gender, ethnic origin, religion, race, disability, or sexual orientation.

In law, hate speech is any speech, gesture or conduct, writing, or display which is forbidden because it may incite violence or prejudicial action against or by a protected individual or group, or because it disparages or intimidates a protected individual or group. The law may identify a protected individual or a protected group by certain characteristics.In some countries, a victim of hate speech may seek redress under civil law, criminal law, or both. A website that uses hate speech is called a hate site. Most of these sites contain Internet forums and news briefs that emphasize a particular viewpoint. There has been debate over how freedom of speech applies to the Internet as well as hate speech in general.

Critics have argued that the term “hate speech” is a contemporary example of Newspeak, used to silence critics of social policies that have been poorly implemented in a rush to appear politically correct.

US Supreme Court Case Law

Some limits on expression were contemplated by the framers and have been read into the Constitution by the Supreme Court. In 1942, Justice Frank Murphy summarized the case law: “There are certain well-defined and limited classes of speech, the prevention and punishment of which have never been thought to raise a Constitutional problem. These include the lewd and obscene, the profane, the libelous and the insulting or “fighting” words – those which by their very utterances inflict injury or tend to incite an immediate breach of the peace.”

Traditionally, however, if the speech did not fall within one of the above categorical exceptions, it was protected speech. In 1969, the Supreme Court protected a Ku Klux Klan member’s racist and hate-filled speech and created the ‘imminent danger’ test to permit hate speech. The court ruled in Brandenburg v. Ohio that; “The constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force, or of law violation except where such advocacy is directed to inciting imminent lawless action and is likely to incite or produce such action.”

This test has been modified very little from its inception in 1969 and the formulation is still good law in the United States. Only speech that poses an imminent danger of unlawful action, where the speaker has the intention to incite such action and there is the likelihood that this will be the consequence of his or her speech, may be restricted and punished by that law.

In R.A.V. v. City of St. Paul, (1992), the issue of freedom to express hatred arose again when a gang of white people burned a cross in the front yard of a black family. The local ordinance in St. Paul, Minnesota, criminalized such racist and hate-filled expressions and the teenager was charged thereunder. Associate justiceAntonin Scalia, writing for the Supreme Court, held that the prohibition against hate speech was unconstitutional as it contravened the First Amendment. The Supreme Court struck down the ordinance. Scalia explicated the fighting words exception as follows: “The reason why fighting words are categorically excluded from the protection of the First Amendment is not that their content communicates any particular idea, but that their content embodies a particularly intolerable (and socially unnecessary) mode of expressing whatever idea the speaker wishes to convey”.Because the hate speech ordinance was not concerned with the mode of expression, but with the content of expression, it was a violation of the freedom of speech. Thus, the Supreme Court embraced the idea that hate speech is permissible unless it will lead to imminent hate violence.The opinion noted “This conduct, if proved, might well have violated various Minnesota laws against arson, criminal damage to property”, among a number of others, none of which was charged, including threats to any person, not to only protected classes.

In 2011, the Supreme Court issued their ruling on Snyder v. Phelps, which concerned the right of the Westboro Baptist Church to protest with signs found offensive by many Americans. The issue presented was whether the 1st Amendment protected the expressions written on the signs. In an 8-1 decision the court sided with Phelps, the head of Westboro Baptist Church, thereby confirming their historically strong protection of hate speech, so long as it doesn’t promote imminent violence. The Court explained, “speech deals with matters of public concern when it can ‘be fairly considered as relating to any matter of political, social, or other concern to the community’ or when it ‘is a subject of general interest and of value and concern to the public.”